Overturning a Final and Binding Judgment in Japan: What is a "Saishin" (Retrial) and When is It Possible?

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

The principle of res judicata (kihanki-ryoku) ensures that once a civil judgment in Japan becomes final and binding, it is generally conclusive, preventing the same dispute from being re-litigated. However, what if it later transpires that this supposedly final judgment was tainted by extremely serious flaws, such as falsified evidence, judicial corruption, or a fundamental misunderstanding of critical facts that could not have been previously addressed? For these exceptional circumstances, Japanese civil procedure provides an extraordinary remedy: the "Action for Retrial" (再審の訴え - saishin no uttae), commonly referred to as Saishin (再審).

This article delves into the nature of saishin, the very specific and limited grounds upon which it can be based, the strict procedural requirements, and why it represents a high hurdle for anyone seeking to overturn a finalized judgment.

I. The Nature and Purpose of Saishin (Retrial)

A. An Extraordinary Remedy, Not a Further Appeal

It is crucial to understand that saishin is not simply another layer of appeal or an opportunity to re-argue the merits of a case because one is dissatisfied with the outcome. Regular appeals (kōso to the High Court, jōkoku to the Supreme Court) must be pursued before a judgment becomes final and binding. Saishin, in contrast, is a special and independent lawsuit filed to challenge a judgment that has already become final and binding.

Its purpose is to provide a narrowly defined avenue for relief when fundamental defects, typically unknown or unprovable during the original proceedings or appeals, have rendered the final judgment intolerably unjust.

B. Balancing Finality with Substantive Justice

The saishin system attempts to strike a delicate balance between two competing legal values:

  1. Legal Stability and Finality: Upheld by the doctrine of res judicata, ensuring that judgments are conclusive and can be relied upon.
  2. Substantive Justice: The need to correct grave miscarriages of justice that would undermine public confidence in the judiciary if left unaddressed.

Because of the strong emphasis on finality, the grounds for saishin are extremely limited and the procedural requirements are stringent.

The provisions governing saishin in civil cases are found in Articles 338 through 349 of Japan's Code of Civil Procedure (CCP) (民事訴訟法 - Minji Soshō Hō).

II. Judgments Subject to an Action for Retrial

An action for retrial can generally be filed against a final and binding judgment (確定した終局判決 - kakutei shita shūkyoku hanketsu) that has concluded a case on its merits. This can include judgments from District Courts, High Courts, and even the Supreme Court if its judgment was the one that finalized the case. Certain other judicial decisions that have the same effect as a final judgment (e.g., a judicial settlement recorded in court) may also be subject to challenge through procedures analogous to saishin if similar fundamental defects are present.

III. The Grounds for Retrial (Saishin Jiyū): Strictly Enumerated and Narrowly Construed (CCP Art. 338(1))

The cornerstone of the saishin system is CCP Article 338, Paragraph 1, which exhaustively lists the specific grounds upon which an action for retrial can be based. No other reasons, however compelling they might seem from an equitable standpoint, can justify a retrial. These grounds generally point to severe irregularities in the original proceedings or fundamental flaws in the evidentiary basis of the judgment.

Key grounds include:

A. Defects in Court Composition or Judicial Participation:

  • Item 1: The court that rendered the original judgment was not constituted as provided for by law (e.g., wrong number of judges).
  • Item 2: A judge who was legally disqualified from participating in the judgment (due to grounds for exclusion or disqualification under the CCP) nevertheless participated.
  • Item 3: A party was not represented in accordance with law (e.g., a minor lacked a proper legal representative, or a lawsuit agent acted without the necessary specific authorization for crucial acts like waiver or acknowledgment of claim), unless the party subsequently ratified the acts.

C. Criminal Acts Affecting the Judgment (Generally Requiring a Final Criminal Conviction or Equivalent Proof):

A significant category of grounds relates to criminal conduct that tainted the original judgment. For these grounds (Items 4 through 7), CCP Article 338(2) imposes a crucial additional requirement: an action for retrial can generally only be filed if the alleged criminal act has been established by a final and binding criminal judgment (a conviction or a non-penal fine), OR if it is proven that such a criminal judgment could not be obtained due to a lack of evidence (despite the act itself being provable in the retrial action). This "criminal conviction prerequisite" is a major hurdle.

  • Item 4: A judge who participated in the judgment committed a crime in relation to their official duties concerning that specific case (e.g., bribery).
  • Item 5: A party was, through a criminally punishable act committed by another person (e.g., the opposing party, a third party), obstructed from submitting a means of attack or defense that would have been material to the judgment, OR a party made a confession or submitted evidence (which became the basis of the judgment) as a result of such a criminal act by another (e.g., duress, fraud leading to a false admission).
  • Item 6: A document or other object that was used as evidence in the judgment, and was decisive to it, was forged or altered.
  • Item 7: The false testimony of a witness, expert, interpreter, or a party who took an oath (in specific contexts), which was used as evidence in the judgment and was decisive to it, constituted perjury.

The requirement to first secure a criminal conviction (or prove why it's impossible despite the underlying criminal act occurring) makes these grounds particularly difficult to invoke successfully.

D. Changes in Underlying Judgments or Administrative Dispositions:

  • Item 8: A civil or criminal judgment, or an administrative disposition, which formed the basis of the challenged judgment, has itself been subsequently altered by a different final and binding judgment or administrative disposition. For instance, if Judgment A was predicated on the validity of Contract X as determined in Judgment B, and Judgment B is later overturned, Judgment A might be eligible for retrial.

E. Omission of Judgment on a Material Point:

  • Item 9: The judgment failed to make a determination on a material point in the claim that should have affected the judgment (判断遺脱 - handan itsudatsu). This refers to a complete failure by the court to rule on a distinct part of the soshōbutsu (subject matter of litigation) or a critical defense properly presented, not merely insufficient or unsatisfactory reasoning on a point that was considered. The Supreme Court (e.g., judgment of February 13, 1975, First Petty Bench, Minshū Vol. 29, No. 2, Page 141) has clarified that this applies to omissions regarding claims that were part of the "main text" of the judgment, not merely points in the reasoning.

F. Conflict with a Prior Final Judgment:

  • Item 10: The judgment conflicts with a prior final and binding judgment that has res judicata effect between the same parties concerning the same subject matter. This addresses situations where, for some reason (e.g., the prior judgment was overlooked), a later inconsistent judgment was rendered.

IV. Time Limits for Filing an Action for Retrial (Saishin Kikan) (CCP Art. 342)

Actions for retrial are subject to strict, immutable time limitations:

  1. General Rule: An action for retrial must be filed within 30 days (an "immutable period" – 不変期間 fuhen kikan, meaning it generally cannot be extended) from the day on which the party became aware of the specific ground for retrial.
  2. Overriding Limit: In any event, an action for retrial generally cannot be filed later than five years from the day on which the judgment became final and binding.
  • Exceptions to the Five-Year Limit: This five-year limitation does not apply if the ground for retrial is:
    • Lack of necessary legal representation (Item 3 of Art. 338(1)).
    • Conflict with a prior final judgment (Item 10 of Art. 338(1)).
    • If the party only became aware of the ground for retrial after the five-year period had already passed, due to reasons not attributable to them (in which case the 30-day limit from awareness still applies).

These time limits are rigorously enforced by the courts.

V. The Retrial Procedure

  1. Filing an Action for Retrial: The party seeking retrial files a formal "action for retrial" (saishin no uttae) with the court that rendered the original judgment being challenged. This action must:
    • Clearly identify the original judgment.
    • Specify which of the statutory grounds under CCP Art. 338(1) are being invoked.
    • Present facts and evidence supporting the existence of those grounds.
    • State the relief sought (i.e., revocation of the original judgment and a new judgment).
  2. Dual Examination by the Court: The court's review in a retrial action typically involves two distinct stages, which may be conducted separately or concurrently:
    • Stage 1: Examination of the Grounds for Retrial: The court first determines whether any of the alleged statutory grounds for retrial actually exist and have been proven by the plaintiff in retrial. This often involves examining evidence related to the alleged defect in the original proceedings (e.g., was there forgery? was there an omission of judgment?).
    • Stage 2: Re-examination of the Merits of the Original Case: If, and only if, the court finds that a valid ground for retrial exists, it will then proceed to re-examine the merits of the original dispute.
  3. Order to Commence Retrial on the Merits: If the court is satisfied that a valid ground for retrial has been established, it will issue an order to commence the retrial on the merits of the original case. This means the original judgment is effectively suspended pending the outcome of the new trial.

VI. Judgment in a Retrial Action (CCP Art. 348)

After completing its review (of both the retrial grounds and, if applicable, the merits of the original case), the court will render a judgment in the retrial action. The possible outcomes are:

  1. Dismissal of the Action for Retrial as Unlawful: If the action for retrial itself is procedurally flawed (e.g., filed out of time, filed against a judgment not yet final, or fails to state any valid ground).
  2. Dismissal of the Action for Retrial on the Merits: If the court finds that no valid ground for retrial under CCP Art. 338(1) has been established by the evidence. In this case, the original judgment remains in full force.
  3. If a Ground for Retrial is Found to be Valid and the Original Judgment is Unjustified:
    • The court will revoke the original judgment (in whole or in part).
    • The court will then render a new judgment on the merits of the original case based on its re-examination of the facts and law (haki jijhan – quashing and rendering its own judgment). This new judgment may be the same as, or different from (partially or wholly), the original judgment. In some limited situations, particularly if the defect related to an omission of judgment on a preliminary procedural issue, the court might remand the case.

The new judgment rendered after a successful retrial is itself subject to ordinary means of appeal.

VII. Comparing Saishin with Post-Judgment Relief in Common Law (e.g., U.S. FRCP Rule 60(b))

For context, Rule 60(b) of the U.S. Federal Rules of Civil Procedure ("Relief from a Judgment or Order") allows a federal court to relieve a party from a final judgment on various grounds, including: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief (a catch-all, extraordinary ground).

Key Differences from Japanese Saishin:

  • Scope of Grounds: While there are conceptual overlaps (e.g., newly discovered evidence, fraud affecting the judgment, void judgments), the Japanese saishin grounds in CCP Art. 338(1) are more rigidly enumerated and, in some critical respects (like the general requirement for a prior criminal conviction to prove fraud or perjury affecting the original judgment), can be significantly harder to meet. FRCP Rule 60(b)'s residual ground (b)(6) for "any other reason that justifies relief" provides a degree of equitable flexibility not explicitly mirrored in the Japanese saishin statute.
  • Time Limits: The time limits for seeking relief under FRCP Rule 60(b) vary by ground (e.g., often within a "reasonable time," and for grounds (1)-(3), not more than a year after entry of judgment), which differs from Japan's specific 30-day from awareness / 5-year from finality framework.
  • Procedural Form: Seeking relief under Rule 60(b) is typically done by filing a motion with the court that rendered the judgment, whereas saishin in Japan is initiated by filing a new, formal "action for retrial" (uttae).

In essence, Japanese saishin is often perceived as a more restrictive and formally demanding remedy for challenging final judgments compared to some of the avenues available under FRCP Rule 60(b).

VIII. Conclusion

The action for retrial (saishin) in Japanese civil procedure stands as an extraordinary and highly challenging pathway to overturn a final and binding judgment. It is not designed to be a general re-assessment of the merits or a remedy for ordinary judicial errors, but rather a specific recourse for correcting fundamental and serious defects that, if unaddressed, would represent a profound miscarriage of justice and undermine the integrity of the judicial decision itself.

The grounds for saishin are strictly limited by statute, often requiring demanding evidentiary prerequisites (such as a final criminal conviction for related offenses like perjury or forgery), and the time limits for initiating such an action are rigorously enforced. While the saishin system embodies the Japanese legal system's ultimate commitment to substantive justice in truly exceptional cases, its stringent requirements also powerfully reflect the profound importance placed on the stability, finality, and conclusiveness of judicial decisions once they have passed through the ordinary appellate process. For litigants, saishin represents a very narrow and difficult window of opportunity to revisit a civil case once it has been formally and finally concluded.